DULHIN NANDKUMARI DEVI Vs. MTBULKAN DEVI

JUDGEMENT

(1.) These two appeals, both filed by Dulhin Nandkumari Devi, arise out of two suits involving claims to property which arose on the death of one Babu Narayan Sao who died on 10 or 11 September 1938. Although there are certain disputed questions of fact, the main question which has been argued in these appeals relates to the meaning of the provisions of the Hindu Women's Rights to Property Act, 1937 (18 of 1937) as amended by Act 11 of 193& and its application to the facts of these cases. Narayan Sao had one son Ramji who predeceased him in 1937, and when he died he left the following persons whose claims to the property formed the subject-matter of this litigation: (1) A widow, Bulkan Devi, (2) three daughters, Ram Kumari Devi, Nand-kumari Devi and Sabitri Devi, and (3) Rama. Devi, the widow of his pre-deceased son Ramji. Admittedly at the time of Narayan Sao's death he was the sole surviving copar. cener of the joint Hindu family of which his son was also a coparcener until his death in 1937, and it is not the case of any of the parties that there was any posthumus son or any possibility that after the death of Narayan, Sao a further coparcener could be introduced into that family by adoption or otherwise.

(2.) Soon after the death of Narayan Sao, disputes arose between the ladies of the family named above over the property left by Narayan Sao. Rarn Devi brought Title Suit No. 12 of 1940 in forma pauperis claiming that Bulkan Devi was not the widow of Narayan Sao but of his elder brother and claiming the entire properties in suit valued at over three lacs of rupees as the sole heir of Narayan Sao. She claimed alternatively that if Bulkan Devi were held entitled to a share as the widow of Narayan Sao, her share might be partitioned. The trial Court held that Bulkan Devi was widow of Narayan Sao and decreed the suit of Rama Devi for half share in the properties and for partition of that share. Rama Devi did not appeal against that decision and has not in this Court disputed the finding that Bulkan Devi was widow of Narayan Sao. Nandkumari Devi brought Title Suit No. 16 of 1939 for a declaration that she and her two sisters were the heirs of Narayan Sao and as such entitled to the properties which, she claimed, were in their possession. This suit was dismissed by the lower Court. Of the two appeals filed by Dulhin Nandkumari Devi, Appeal No. 109 arises out of Title Suit No. 15 of 1939 and Appeal No. 136 out of Title No. 12 of 1940. I have already mentioned that the lower Court held that Bulkan Devi was widow of Narayan Sao and this finding has not been disputed at the hearing of these appeals. Bulkan Devi however died during the pendency of these appeals in September 1943. In the lower Court it was also contended on behalf of the present appellant that Rama Devi had married again but the finding of the lower Court was against the appellant on this point, and she has not pressed this contention again on appeal. The main question for decision in these appeals is whether on the death of Narayan Sao, Rama Devi was entitled to succeed to a share in the property under the provisions of Section 3 (1), Hindu Women's Rights to Property Act, 1937, as amended in 1938. This section runs as follows:

(3.) (1) When a Hindu governed by the Dayabhaga School of Hindu law dies intestate leaving any property, and when a Hindu governed by any oilier school of Hindu law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow all his widows, together, shall, subject to the provisions of Sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son: Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son ; Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son. 3. The parties in this case are admittedly governed by the Mitakshara School of Hindu Law. The first contention of Mr. , L. K. Jha on behalf of the appellant is that the property in question was joint family property while Narayan Sao's son was alive and that it did not lose its character after the death of that son and, therefore, it was not separate property for the purpose of S. S (1) of that Act.